You are on page 1of 14
U.S. Department of Justice United States Attorney Southern District of New York Pre Sitio J. Molo Butung One Sant dares Pca ew Yor, Now For 10007 € oO PY October 5, 2005 By Hand The Honorable Andrew J. Peck United States Magistrate Judge Southern District of New York United States Courthouse 500 Pearl Street, Rm. 750 New York, New York 10007 Re: Application for Pen Register and Trap and Trace Device With Cell-site Location Authority Dear Magistrate Judge Peck: The Government respectfully submits this letter in response to Your Honor’s request for briefing before deciding whether to approve further Government applications for orders to disclose cell-site information. For the reasons set forth below, the Court should grant such applications pursuant to the combined authority of Title 18, United States Code, Sections 3121, et seq (the pen register and trap and trace statute, or “Pen/Trap Statute”), and Title 18, United States Code, Sections 2701, et seg. (the Stored Communications Act, or “SCA”) BACKGROUND A. Cellular Telephone Networks Cellular telephone networks function by dividing a geographic area into many coverage areas, or “cells,” each containing a tower through which an individual portable cell phone transmits and receives calls. As the cell phone and its user move from place to place, the cell phone automatically switches to the cell tower that provides the best reception. For this process to function correctly, the cell phone must transmit a signal to a nearby cell tower to register its presence within the cell network. Cellular telephone companies typically keep track of this information, which can include the identity of the cell tower currently serving the cell phone and the portion of the tower facing it, in order to provide service to the cell Hon. Andrew J. Peck October 5, 2005 Page 2 of 14 phone. Cellular telephone companies also have the technical means to collect and store this information Orders to Compel Disclosur: Li-sits The United States Attorney’s Office for the Southern District of New York - like other U.S. Attorney’s offices around the country - has routinely applied for and obtained court orders for pen registers and trap and trace devices with cell-site disclosure authority (“cell-site orders”). These orders compel cellular telephone companies to report dialed and received numbers, as well as cell-site data, for a particular cell phone on a prospective basis. The cell-site information is used by government agents to, among other things, help locate kidnaping victims and fugitives or other targets of criminal investigations. In its applications, the U.S. Attorney’s Office for the Southern District of New York relies on a combination of two statutes to authorize the disclosure of cell-site information Title 18, United States Code, Sections 3121, et sea., (the Pen/Trap Statute) and Title 18, United States Code, Sections 2701, et sea., (the SCA), in particular Section 2703(d).! As discussed more fully below, a pen register/trap and trace device may be issued upon a Government attorney’s affirmation “that the information likely to be obtained is relevant to an ongoing criminal investigation.” 18 U.8.C. § 3122. Cell-site disclosure requires a further demonstration by the Government attorney of “specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought are relevant and material to an ongoing criminal investigation.” 18 U.S.C. § 2703(d). It 1s this Office’s practice to comply with these requirements when submitting an application for cell-site orders. It is this Office's understanding that the U.S. Attorney's Office for the Eastern District of New York likewise relied on the same combination of statutes in 1ts application for a cell-site order which was rejected by Magistrate Judge Orenstein, as discussed below. Hon. Andrew J. Peck October 5, 2005 Page 3 of 14 Cc. The Government's appli ns for Cell-site Orders On September 21, 2005, the Government submitted two sealed applications tor cell-site orders. (A copy of a similar model application is attached hereto as Exhibit A.) On September 22 2005, Your Honor’s chambers informed the Government that Your Honor had declined to grant the Government's applications without further briefing from the Government concerning the propriety of issuing these orders. In doing so, Your Honor’s chambers cited a recent opinion by Magistrate Judge Orenstein in the Eastern District of New York, In re Authorizing the Use of a Pen Register, 2005 WL 2043543 (E.0.N.¥. Aug. 25, 2005) iste: in’s Opinion In his decision, Magistrate Judge Orenstein rejected a Government application for @ cell-site order, finding that neither Section 2703(d) nor the Pen/Trap Statute standing alone provided sufficient authority for the disclosure of cell-site Gata, and that a search warrant issued on a showing of probable cause would be required for this information. Notably, Judge Orenstein did not consider whether the statutes together provided the necessary authority. Referring to the Language in Section 2703(d), Judge Orenstein stated that “the only one” of Section 2703's provisions that “appears arguably to permit the disclosure of cell-site location information is the language permitting the disclosure of ‘the contents of a wire or electronic communication.’” In re Pen Register, 2005 WL 2043543 at *1-2 (emphasis added”. Judge Orenstein concluded that this language was insufficient, however Finding that cell-site information constitutes a “communication from a tracking device,” as defined in 18 U.S.C. § 3117, which is specifically exempted from the class of “electronic communications” discoverable under Section 2703. Id. (citing 18 U.S.C. §§ 2510(12)(C)). The Court ended its analysis by contending that use of a tracking device normally requires a showing of probable cause Turning to the Pen/Trap Statute, Judge Orenstein recognized that pen registers and trap and trace devices provide cell-site information as a matter of course. Id, at *2. The Court found, however, that the Pen/Trap Statute was limited by Section 103(a) (2) of the Communications Assistance for Law Enforcement Act ("CALBA”), P.L. 103-313, 108 Sta. 4279 (1994), codified at 47